The City of Waterloo is…

The City of Waterloo is generally supportive of the changes proposed through Bill 139. Specific comments and recommendations are provided below for consideration by the Province.

1) New Tribunal and Procedural Rules

Changes to the Tribunal’s authority and procedures rules proposed through Bill 139 are expected to address challenges associated with the OMB’s costly and protracted appeals process. The City of Waterloo supports the Bill’s changes that encourage better case management and screening, modern approaches to hold proceedings and shorter timelines for decisions. The City also supports the Bill’s effective elimination of de novo hearings through limitations on who can participate in a hearing, how new evidence and witnesses are handled, and the two step hearing process that provides municipalities with an opportunity to make a new decision.

The City looks forward to reviewing the proposed regulations to be set out by the Minister that further outline 1) who can participate in a hearing, 2) how evidence can be given, 3) how hearings can be conducted and decisions can be conveyed, and 4) timelines for decisions. Given that key elements of the appeals process will depend on these forthcoming regulations, the Province is encouraged to provide a draft of the proposed regulations prior to the third reading of the Bill. The Province is also encouraged to release supporting information and guidelines to help municipalities navigate the new system.

2) Exemptions and Grounds for Appeal

The City is supportive of the proposed exemptions from appeal and the clear articulation of the grounds for appeal to help eliminate appeals that have no planning basis or that undermine municipal efforts to adhere to Provincial policy. Exemptions of certain planning decisions from appeal and the requirement for the Tribunal to dismiss cases that do not meet the specified grounds for appeal are anticipated to reduce the City’s involvement in hearings and related costs, and may help reduce time lags associated with bringing new plans into conformity with Provincial policy. While some of these grounds, such as conformity to Provincial policy and Official Plans, already serve as evaluative criteria in current appeal proceedings, their more stringent application is expected to result in a larger number of summary dismissals.

Of concern to the City is the possibility that measures to restrict appeals through the Tribunal may result in a redirection of those appeals to the courts, which could negate any benefits associated with cost and times savings. The City’s solicitor has expressed general concerns about the resolution of planning issues through the more formal and legal proceedings of the court system and defending against accusations of denial of natural justice.

Recognizing that planning regularly involves trade-offs between competing Provincial interests, the Province is encouraged to provide supporting information and guidance to municipal councils regarding how and when decisions will be reviewed with respect to conformity and consistency to Provincial policy statements. In the event that a hearing involves interpretation of Provincial policy or plans, the Province should be prepared to provide clarification and/or evidence regarding conformity and consistency.

While the Bill establishes new grounds for appeal of decisions relating to lower tier Official Plans, OPAs and Zoning By-laws and non-decisions of Plans of Subdivision, other decisions relating to Plans of Subdivision, Site Plan, and Committee of Adjustment appear to not to be required to meet the same conformity and consistency tests. For Plans of Subdivision, it is not clear why notices of appeal of council decisions are exempt from the new consistency/conformity requirements established in Bill 139. Clarification or guidance from the Province would help the City interpret the new system.

Bill 139 exempts Interim Control By-laws from appeal, except by the Minister. As per the City’s original comments to the Province in 2016, the exemption of interim control by-laws from appeal may result in more indiscriminate use of this powerful tool. Procedures to better screen, but not prohibit, appeals to interim control by-laws may be a more appropriate approach.

3) Local Planning Appeal Support Centre

The City is supportive of the proposal to develop local planning appeal support centres to assist appellants in determining whether their appeal contains sufficient planning grounds and meets legislative requirements. Better citizen support is expected to help reduce the number and length of appeals and to make more effective use of all parties’ time and resources. The Province is encouraged to provide further clarification with respect to how additional persons will be provided sufficient notice of an opportunity to participate in a hearing in advance of the case conference and who will be responsible for issuing that notice.

4) Planning for Climate Change

Additional support from the Province in terms of guidelines and supporting materials would help the City ensure that its climate change policies are clear and effective.

[Original Comment ID: 210821]